The Revised Version of American Religious Freedom: A Conversation with Steven Smith

Rise and Decline

This next episode of Liberty Law Talk is with Steven Smith on his new book The Rise and Decline of American Religious Freedom. Our conversation explores Smith's challenge to the dominant academic narrative that the Supreme Court's mid-twentieth century decisions imposing secular neutrality vindicated the religion clauses of the First Amendment. In this version, their essence was to secure a government free of religion, tout court. But what if the First Amendment's original public meaning and subsequent practice reflected a very different essence? Our conversation begins with the history of the ratification of the First Amendment. What do we make of…

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A Closing Window

The question of same-sex marriage has divided influential thought leaders on the “right.”

Some, like Ryan Anderson, argue that “those who defend — and live out — the truth about marriage should redouble their efforts to witness to the truth about marriage while there is still time to steer clear of that chaos.” In essence, they urge opponents to continue to advance the “conjugal view of marriage” in an effort to defeat legislative (and perhaps judicial) efforts to recognize same-sex marriage.

Others, like Rod Dreher, contend that there is “a consensus emerging on the right that the most important goal at this stage is not to stop gay marriage entirely but to secure as much liberty as possible for dissenting religious and social conservatives while there is still time.”

Even if the courts do not definitively decide the question in the next few years, those who oppose same-sex marriage on the merits face a closing window of opportunity for securing religious freedom. Given the political and judicial momentum of same-sex marriage, it is far wiser to focus on the still-achievable goal of muting the impact of marriage equality on religious freedom, before that window closes, than to continue to oppose it outright.

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Raising Arizona: Lessons from the Same-Sex Marriage Movement

A lot has been said about Arizona’s SB 1062, vetoed by Arizona Gov. Brewer. Some see it as a bellwether of “growing threats to religious liberty,” others as a debate “captured by utterly intolerant people on both sides” with many seeking “liberty for me, and [to have their] opponent ground into the dust.” Marriage equality advocates see SB 1062 as, at best, a “misguided attempt to preserve an outdated social order;” at worst, a license to discriminate.

Lost in the aftermath is the fact that SB 1062 was a very different animal from the primary context in which religious liberty exemptions have emerged—namely, same-sex marriage legislation.

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A Jurisprudence to Grow the State

There are striking parallels in how the left-liberals treat constitutional liberty in political and religious expression. First, their positions in both areas are premised on a kind of faux neutrality that masks consolidation of their own power. As I have discussed, in campaign finance, left-liberals seek to eliminate the undue influence of the rich, regardless of their viewpoint. What this “neutrality” ignores is that by restricting the influence of some powerful citizens, it effectively expands the influence of other powerful groups who substantially affect the political climate and are not similarly constrained. These powerful  are most importantly, the mainstream media, academia and the entertainment industry that are predominantly—indeed in most cases—overwhelming left- liberal.

Similarly, in religious liberty, left-liberals want to restrict the capacity of religious organizations to project their views, as reflected, for instance, in their opposition to school vouchers available to religious schools. It is true that preventing religious schools from using vouchers treats all religions equally but it privileges a secular civic life. A government school can and frequently does have a secular creed that is some mixture of environmentalism and a particular take on the concept of state mandated diversity.  It is much more hospitable to reinforcing  a state-centered view of the world than a religious school.

A second point of comparison is the hostility of left-liberals to the rights of corporations.

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Elane Photography is a Bad Vehicle For Religious Liberty Case (Post Updated)

Update 3/23/14: I mistakenly assumed that petitioners appealed the Free Speech and Free Exercise clause. I now see that they only appealed the compelled speech issue. Here is the only question presented:

Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.

Of course the Justices can also grant the Free Exercise issue, even though it was not mentioned in the Cert petition. I’ll leave the remainder of the post as is.

 

Currently pending before the Supreme Court is the certiorari petition in Elane Photography v. Willock, which involves a case where a photographer refused to photograph a same-sex civil commitment ceremony.  While much of the attention to this case focuses on religious liberty, Eugene Volokh and Ilya Shapiro have a great Op-Ed arguing that forcing Elane to photograph a same-sex wedding, against her wishes, would not only implicate religious liberty, but free expression. They would be forcing her to speak–or more precisely create art in the form of photographs:

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Religious Exemptions to Anti-Discrimination Laws under RFRA

Now that the debate over Arizona’s SB 1062 bill is over, it is worthwhile to pause and think about some of the legal implications of carving out religious exemptions for generally applicable anti-discrimination law. Specifically, does the federal Religious Freedom Restoration Act (which was virtually identical to the provision proposed in Arizona) offer a defense for a private claim of discrimination.

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Setting the Establishment Clause Against Religious Liberty

Frederick Gedicks, who holds the Guy Anderson Chair at Brigham Young University Law School, recently argued in the Washington Post that to permit Hobby Lobby and Conestoga Wood, the two companies challenging the contraception mandate on religious liberty grounds, to receive an exemption from its strictures would be a violation of the Establishment Clause. Gedicks argues that granting the exemption would, in effect, make employees of these companies pay the costs of their employers practicing their religion:

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Catholic and American: Another JFK Mystery

Coming just prior to the fiftieth anniversary of the assassination of John F. Kennedy, the announcement that the U.S. embassy to the Vatican would be moved into the Rome embassy grounds struck many American Catholics as yet another insult by the Obama Administration. In fact, the Vatican Embassy is not being closed—though several former Ambassadors to the Vatican have criticized the change. (Ronald Reagan was the first President who authorized an Ambassador to the Vatican, so the move may be as much anti-Reagan as anti-Catholic.) But in reviewing the Kennedy record, we discover that the only Catholic President had campaigned against having an Ambassador to the Vatican.

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The Tragedy of Religious Freedom

Tragedy

This next Liberty Law Talk is with Marc DeGirolami on his new book, The Tragedy of Religious Freedom (Harvard University Press, 2013). Central to DeGirolami's argument is the failure of monistic accounts that seek to resolve religious liberty disputes by cosmic appeals to neutrality, equality, or other universal rationales. These fail because they do not consider the range of conflicts, practices, traditions, and meanings that are at stake in these highly controverted cases. Similarly, DeGirolami takes issue with those who deny even the possibility of the concept of religious freedom. Instead, he looks in a Burkean manner to how the practices…

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Originalism and Religious LIberty

The first day of teaching undergraduate constitutional law, I (not a lawyer) would take a well-regarded law school casebook, and I would ask a student to find the Dred Scott case in it.  It was only referred to. Law schools have practical purposes, so why teach a case that is (mistakenly) regarded as completely irrelevant to contemporary law? Yet, unless one knows what the Reconstruction Amendments were presumably repudiating, how can one know what they stand for?

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